ii. Exceptions to the obligation of legal remedy exhaustion

The principle of legal remedy exhaustion does not apply without exception. On the one hand, all legal remedies do not have to be exhausted if the existing legal remedy formally has no chance of success. Following this rule, in Case No. U 23/00 the Constitutional Court decided that an appeal against the first- instance court’s ruling, whereby proceedings for compensation for damage were discontinued, was an ineffective legal remedy. A decisive factor was the fact that the proceedings were discontinued on the basis of a decision of the Government of the Republika Srpska so that the appellate proceedings would have had no effect.

On the other hand, the principle of exhausting legal remedies does not stand in the way of filing an appeal if the case involves an allegation about the violation of the right to trial within a reasonable time, since such an allegation cannot be made in the proceedings pending before the ordinary courts.³⁰¹⁴ However, the same does not apply insofar as administrative procedure is concerned, since the law provides for remedies to be pursued in case of silence of the administration (i.e., the lack of any response from administrative authorities) both in the first-instance proceedings and in appellate proceedings.³⁰¹⁵ At any rate, the allegations concerning a violation of the right to a fair trial within a reasonable time under Article 6 of the ECHR may be granted only by establishing a violation of the right under Article 6 of the ECHR and by giving an order to conduct an urgent procedure in order to finalise the proceeding before the ordinary courts. The Constitutional Court cannot be requested to take a decision on the merits to terminate the proceedings, since they are still pending before the ordinary courts.

Finally, all legal remedies do not have to be exhausted, which is a natural and logical conclusion if a legal remedy has not yet been provided for by law or if the appellant does not have the right of action which would entitle him/ her to pursue it according to the relevant provisions of law. In such cases, the Constitutional Court establishes a violation of the right of access to a court, since the legislature failed to regulate a legal matter in terms of providing for an effective legal remedy against a violation of human rights and freedoms by the State authorities. The Constitutional Court takes a decision whereby it refers the case back to the ordinary authorities which are to provide protection to the appellant in accordance with the reasoning of the Constitutional Court’s decision, regardless of the positive-legal regulations.³⁰¹⁶

The Constitutional Court has resorted to a special solution in certain cases. Therefore, in Case No. U 24/00 the Constitutional Court suspended the proceedings pending a final decision by the Supreme Court of the Republika Srpska instead of rejecting the appeal as inadmissible for being premature (the premature character is essentially grounded on the failure to exhaust legal remedies),³⁰¹⁷ whereupon the Constitutional Court took a decision on the merits after the appellant had filed a supplement to her appeal in order to extend it to the final decision taken meanwhile by the Supreme Court of the Republika Srpska. In another case, the appeal was rejected as premature, since the proceedings before the ordinary courts were still pending.³⁰¹⁸ The difference between these cases could imply an affirmative answer to the question whether a final outcome of the proceedings before the lower-instance courts is visible or not and whether the Constitutional Court is acquainted with this “weather forecast”.